United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-2182

___________ United States of America, * * Appellee, * Appeal from the United States * District Court for the v. * Western District of Missouri. * Paula D. Hudson, * [TO BE PUBLISHED] * Appellant. *

___________ Submitted: October 7, 1997 Filed: November 5, 1997

___________ Before WOLLMAN, LOKEN, and HANSEN, Circuit Judges.

___________ PER CURIAM.
Paula D. Hudson pleaded guiltyto conspiring to distribute methamphetamine in violationof 21 U.S.C. §§ 841(a)(1) and 846. After a sentencing hearing, the district court imposed a two-level enha ncement under U.S.S.G. § 2D1.1(b)(1) (1995), finding that Hudson possessed a firearm in conn ection with her drug offense. Hudson appeals the res ulting 151-month sentence, challenging the fact findings on which thi s enhancement was based. We remand for resentencing.-2-

Hudso n’s presentence investigation report (PSR) recited that on October 1 , 1996, Hudson agreed to sell three pounds of methamphetamine to a prior customer , Donald Palmer, who was then cooperating with authorities. On October 3, one da y before th e agreed transaction, Palmer got into Hudson’s car, examined a one-gra m sample , and discussed delivery of the larger quantity. During this conversation , Hud son had a handgun lying in her lap. The next day, while on her way to mee t Palmer, Hudson was stopped by local police, who found a small pack et containing 60.5 grams of methamphetamine on her person and a loaded pistol in the vehicle. The PSR recommended a § 2D1.1(b)(1) enhancement. Hudson objected to the firear m enhancement, denyingthat she possessed a firearm on October 3 and arguing that she was not participating in the drug offense when arrested on October 4. At the sentencing hearing, the proba tion officer who prepared the PSR testified, over Hudson’s hearsay objection, that she had read a DEA agent’s report, an d interviewed that agent, concerning Hudson’s arrest. The agent repo rted that, during the search of Hudson’s car after her arrest, police found a pistol i n the seat next to Hudson, the only occupant of the car. The government offered no further sentencing evidence. The district court then adopted the findings in the PSR. The court further found that the pistol uncovered in Hudson’s vehicle on October 4 establi shed a “pattern” because, as recited in the PSR, she had been in possession of a loaded firearm when arrested for possession of methamphetamine in November 1995, and dis played a weapon when she met with Palmer on October 3. The district court's finding that Hudson poss essed a firearm on October 3, 1996, is without record support and therefore clearly erroneous. As we have repeatedly held, whe n the defendant makes a timely objection to the PSR, “[i]f the sentencing court chooses to make a finding with respect to the disputed facts, it must do so on the basis of evidence, and not the presentence report.” United States v. Burke , 80 F.3d 314, 316 (8th Cir . 1996), quoting United States v. Greene , 41 F.3d 383, 386 (8th Cir. 1994)

. Here, Hudson not only objected to the PSR’s recommended § 2D1.1(b)(1)It is u nclear whether the DEA agent’s written report, to which the probatio n 1 of ficer referred in her testimony at the sentencing hearing, was made part of th e sentencing record in the district court. If so, the government failed to make it part of the record on appeal. If it was not p art of the original sentencing record, it may not be made part of the sentencing record on remand. -3- enh ancement, she specifically objected to the PSR’s assertion that she possessed a firearm during her October 3 meeting with Palmer. Given those objections, the PSR is not ev idence as to the presence of a weapon during the October 3 incident, and the government

introduced no other evidence to establish that disputed fact at th e sentencing hearing. To th e extent the district court relied on the October 3 incident to establish a "pattern," its "pattern" finding is likewise flawed. According ly, we remand this case for resentencing. Because we have clearl y stated the governi ng principles as to when and how disputed sentencing facts must be proved, we direct that resentencing on remand be conducted on the existing sentencing record, with no opportunity for either party to reopen or add to that record. We reject 1 Hudson’s contention that the district court abused its discretion in admitting an d creditin g the probation officer’s hearsay testimony at the sentencing hearing. Se e U.S.S.G. § 6A1.3(a), p.s. (1995); United States v. Stavig , 80 F.3d 1241, 1247 (8th Cir. 1996) (standard of review); Unite d States v. Wise , 976 F.2d 393, 395-96, 403-04 (8th Cir. 1992) (en banc), cert. denied , 507 U.S. 989 (1993).
The judgmentof the district court is reversed and the case is remanded fo r further sentencing proceedings not inconsistent with this opinion. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.